Pinckard v. People, 2 Ill. 187, 1 Scam. 187 (1835)

Dec. 1835 · Illinois Supreme Court

2 Ill. 187, 1 Scam. 187

William G. Pinckard, David Pembroke, B. F. Long, Nathan C. D. Taylor, and Henry Long, plaintiffs in error v. The People of the State of Illinois.

Error to Madison.

It is error to enter up final judgment upon a recognisance upon the recognisors failing to appear agreeably to the terms of their recognisance. Before final judgment can be. entered, a scire facias must issue against them to show cause why judgment and execution should not be had, or an action must be instituted on the bond to recover the penalty.

Judgment was rendered in this cause at the November special term of the Madison Circuit Court, 1834, by the Hon. Theophilus W. Smith, for $100 and costs. To reverse this judgment a writ of error was prosecuted to this Court.

J. M. Krum, for the plaintiffs in error.

Smith, Justice,

delivered the opinion of the Court:⁽¹⁾

The record in this case shows a judgment on a bond or recognisance of the defendants to appear and testify on behalf of the People, at a Circuit Court to be holden at Edwardsville on the 4th Monday of October, 1835. The defendants, on being called, did not appear, and their default was entered, and a final judgment rendered for the penalty of the recognisance and costs.

The error assigned is that this final judgment was irregular. This we cannot doubt.

Instead of a final judgment, a scire facias should have been sued out against the defendants, to show cause why judgment and execution should not be had, or an action instituted on the bond to recover the penalty. The final judgment is reversed, and the cause remanded for further proceedings.

Judgment reversed.

(1) Wilson, Chief Justice, did not sit in this cause.